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Judicial Power and Justiciability

63 min7 osiotIlmainen luku

Before a federal court reaches the merits of any constitutional claim, it must have the power to decide the case. This chapter covers the limits of the federal judicial power under Article III, the control Congress has over federal jurisdiction, state sovereign immunity under the Eleventh Amendment, and the justiciability doctrines of standing, ripeness, mootness, advisory opinions and political questions. It closes with the adequate-and-independent-state-ground rule and abstention. Standing is the most frequently tested Constitutional Law issue on California essays.

Oppimistavoitteet

  1. 1.Explain the limits on federal judicial power under Article III and how far Congress may control federal jurisdiction.
  2. 2.Apply the Eleventh Amendment and its escape routes: consent, valid congressional abrogation, and suits against state officials under Ex parte Young.
  3. 3.Run the three-element standing test, then the rules on third-party, organizational and taxpayer standing.
  4. 4.Decide whether a case is unripe, moot, a request for an advisory opinion, or a political question.
  5. 5.Recognize an adequate and independent state ground and the main abstention doctrines.

1.1 How Constitutional Law is tested

Constitutional Law is the study of the United States Constitution. It covers the powers the Constitution gives to the federal government, the limits it places on all governments, and the rights it protects. On the California Bar Exam the subject appears on the Multistate Bar Examination (MBE) and on the essay day. Only the federal Constitution is tested. California constitutional law is not part of the subject.

Constitutional Law on the California Bar Exam
ComponentWhat to expect
MBE (Day 2)200 questions, 175 of them scored. 25 scored questions are Constitutional Law. About half test individual rights; the rest test judicial power (this chapter), separation of powers and federalism.
Essays (Day 1)Constitutional Law appeared on 27 of the last 50 California exams (54 percent). Standing is the most tested rule: 13 of the last 50 exams.
California lawNone. Essays and MBE questions test the federal Constitution only.
Exam formatTwo-day exam: February 23 to 24, 2027; July 27 to 28, 2027 (anticipated); February 2028 is the last administration of this format. From July 2028 the NextGen UBE replaces it, and Constitutional Law stays a foundational subject.
Passing score1,390 of 2,000 points. The MBE and the written section each count 50 percent. The MBE day has 200 questions in two 3-hour sessions, about 1.8 minutes per question.

Huom

The applicable-law default

The essay booklet says: “Unless a question expressly asks you to use California law, you should answer according to legal theories and principles of general application”. For Constitutional Law this means the federal Constitution and the decisions of the United States Supreme Court. Constitutional Law essays test federal law only.

justiciability – The set of rules that decide whether a federal court may hear a dispute at all: standing, ripeness, mootness, advisory opinions and political questions.U.S. Const. art. III, § 2

This chapter is about justiciability and the related limits on federal judicial power. These doctrines decide who may sue, when, and about what. They come before every other issue. A court that lacks the power to hear a case never reaches the merits, no matter how strong the constitutional claim is.

What the questions look like

On the MBE, a justiciability question usually asks for the strongest ground for dismissal or the best argument that the court lacks jurisdiction. The facts describe a plaintiff, a government act, and a timeline. The answer choices name doctrines. Your job is to match the facts to the one doctrine that fits, and to reject the three that sound similar.

On an essay, the pattern is a statute or a government decision, a person who objects to it, and a lawsuit in federal court. The first call often asks whether the plaintiff may bring the action. That call is asking about standing, ripeness, mootness and the Eleventh Amendment. Later calls ask about the merits. Graders reward a short, complete justiciability paragraph before the merits.

Elementit

The Constitutional Law attack order

Use this order for every Constitutional Law essay. The last chapter of this subject teaches it fully.

  1. 1.Justiciability: Standing, ripeness, mootness, political question, Eleventh Amendment. Always first when a federal court is involved.
  2. 2.State action: Is the defendant the government, or a private party acting like it? Rights claims need state action.
  3. 3.Source of power: Federal law needs an enumerated power (commerce, taxing, spending). State law needs only the police power.
  4. 4.Federalism limits: Preemption, the dormant commerce clause, Article IV privileges and immunities, intergovernmental immunity.
  5. 5.Separation of powers: Which branch acted, and did it take another branch’s power?
  6. 6.Individual rights: Due process, equal protection, takings, First Amendment. Name the level of scrutiny and apply it.
  7. 7.Conclusion: State who wins on each issue in one sentence.

Mikä tahansa riittää.

Keskeinen kohta

Justiciability comes first. A court that cannot hear the case never reaches the merits, and graders award points for saying so before the rights analysis.

Tenttivinkki

Write a short justiciability paragraph at the start of every Constitutional Law essay that involves a federal court, even when standing looks obvious. Standing was tested on 13 of the last 50 California exams.

Memorize three things: the three elements of standing, the Eleventh Amendment table in section 3, and the four exceptions to mootness. Most MBE questions on this chapter turn on those lists. Then practice reading timelines. The difference between an unripe claim and a moot claim is only a question of when the injury happens.

Keskeiset huomautukset

  1. 1.Constitutional Law is tested on the MBE (25 scored questions) and appears on 54 percent of recent California exams (27 of the last 50).
  2. 2.Only the federal Constitution is tested; California constitutional law is not.
  3. 3.Standing is the single most tested rule: 13 of the last 50 exams.
  4. 4.Justiciability is the first step of the attack order; write it before the merits.

1.2 Article III and congressional control

Federal courts are courts of limited power. Two sources set the limits. The first is the Constitution itself: Article III lists the kinds of cases federal courts may hear and requires a real dispute. The second is Congress, which creates the lower federal courts and writes the statutes that give them jurisdiction. This section explains both sources and the line between them.

perussääntöLiittovaltion

U.S. Const. art. III, § 1

Article III, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The Constitution creates only one court: the Supreme Court. Congress decides whether to create lower federal courts, and it has done so: the district courts and the courts of appeals. Congress may also abolish them. Article III judges hold office during good behavior, which means for life unless impeached, and their salaries may not be reduced. These protections keep the judiciary independent of the other branches.

case or controversy – A real, live dispute between adverse parties that a court can resolve with a binding judgment. Article III limits federal courts to such disputes.

Sääntö

Federal judicial power reaches only cases and controversies

Article III, Section 2 lists the categories of cases federal courts may hear, including cases arising under federal law and controversies between citizens of different states. A federal court may act only within these categories, and only when a real dispute exists between adverse parties.

Elementit

Doctrines that flow from the words “case or controversy”

Each of these doctrines is a way of asking whether a real dispute exists. Sections 4 and 5 teach them.

  1. 1.No advisory opinions: A court will not state the law outside a real dispute.
  2. 2.Standing: The plaintiff must have a personal stake in the outcome.
  3. 3.Ripeness: The dispute must have developed enough to decide.
  4. 4.Mootness: The dispute must still be alive at every stage.
  5. 5.Political question: The issue must belong to the courts, not to another branch.

Mikä tahansa riittää.

Judicial review

judicial review – The power of courts to decide whether a law or government act conforms to the Constitution, and to refuse to apply one that does not.

Asia

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (U.S. Supreme Court 1803)

Faktat

Marbury was appointed a justice of the peace in the last days of the Adams administration, but his commission was never delivered. He asked the Supreme Court to order Secretary of State Madison to deliver it, relying on a statute that gave the Court original jurisdiction to issue such orders.

Holding

The Court has the power to declare an act of Congress unconstitutional. The statute was invalid because Congress cannot expand the Supreme Court’s original jurisdiction beyond the list in Article III.

Miksi sillä on väliä

Establishes judicial review: federal courts decide what the Constitution means and may refuse to apply laws that conflict with it.

Sääntö

Original and appellate jurisdiction of the Supreme Court

The Supreme Court has original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and cases in which a state is a party. Congress may not add to that list. In all other Article III cases the Court has appellate jurisdiction, with such exceptions and under such regulations as Congress makes.

certiorari – The discretionary writ by which the Supreme Court agrees to review a lower court’s judgment; 4 of the 9 Justices must vote to grant it.

Sääntö

Supreme Court review of state courts

The Supreme Court may review a final judgment of the highest state court in which a decision could be had, when the case turns on federal law. Review is by writ of certiorari, which the Court grants at its discretion. The state court’s reading of state law is final.

Why does this matter for the exam? Because a state court has the final authority on state law but never on federal law. When a state supreme court decides a Fourth Amendment question, the United States Supreme Court may review it. When the same court decides a question only under its own state constitution, its reading of state law is final. Section 6 develops this idea.

Congressional control of jurisdiction

Asia

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1869) (U.S. Supreme Court 1869)

Faktat

McCardle, a newspaper editor held by military authorities in Mississippi after the Civil War, sought habeas corpus under an 1867 statute. After the Supreme Court heard argument on his appeal, Congress repealed the part of the statute that gave the Court appellate jurisdiction over such appeals.

Holding

The Court dismissed the appeal. The Constitution expressly lets Congress make exceptions to the Court’s appellate jurisdiction, and the Court will not inquire into the motives of the legislature.

Miksi sillä on väliä

Congress may limit the Supreme Court’s appellate jurisdiction. The outer limits of this power are still debated; the Court noted that other routes to habeas relief remained open.

Sääntö

What Congress may and may not do

Congress may create and abolish lower federal courts, define their jurisdiction, and make exceptions to the Supreme Court’s appellate jurisdiction. Congress may not direct how a court decides a pending case, reopen a final federal judgment, or give federal courts jurisdiction beyond Article III.

The line is between controlling access and controlling the judgment. Congress may close access: it may remove a class of cases from federal jurisdiction. Congress may also change the law that applies to pending cases, because that is ordinary legislation (Bank Markazi). But Congress may not tell a court how to decide a case under existing law. Nor may it order a court to reopen a final judgment.

Keskeinen kohta

Congress controls which cases may enter the federal courts, but not how the courts decide them. It may remove jurisdiction; it may not dictate an outcome or reopen a final judgment.

Tenttivinkki

An MBE answer that says Congress “may not limit the Supreme Court’s appellate jurisdiction” is almost always wrong. The Exceptions Clause allows limits. The wrong answer usually confuses appellate with original jurisdiction, which Congress may not change.

Keskeiset huomautukset

  1. 1.Article III creates the Supreme Court; Congress creates, defines and may abolish the lower federal courts.
  2. 2.Federal courts decide only cases and controversies within the Article III categories.
  3. 3.Marbury: courts may declare laws unconstitutional; Congress cannot expand the Court’s original jurisdiction.
  4. 4.McCardle: Congress may make exceptions to the Court’s appellate jurisdiction.
  5. 5.Congress may not direct the outcome of a pending case or reopen a final judgment.

1.3 Eleventh Amendment and state sovereign immunity

Many constitutional cases are suits against a state: a state agency, a state university, a state prison. The Eleventh Amendment often bars these suits in federal court. The exam tests the bar and, even more often, the ways around it.

sovereign immunity – The principle that a government cannot be sued without its consent. For the states, the Eleventh Amendment and the structure of the Constitution give this immunity in federal court.

The story begins with Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), where the Supreme Court allowed a citizen of South Carolina to sue Georgia for a debt. The states ratified the Eleventh Amendment in 1795 to reverse that result. Its text covers only suits by citizens of another state or of a foreign state. The Court has read it broadly.

Huom

Text of the Eleventh Amendment

The amendment reads: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity”. The suit must be one “commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”. It does not mention suits by a state’s own citizens, or suits in state court. The Court added both in Hans v. Louisiana, 134 U.S. 1 (1890), and Alden v. Maine, 527 U.S. 706 (1999).

arm of the state – A state body that is part of the state itself, not legally separate from it. Signs: the state is formally liable for its judgments, and the body is not a separate corporation.

Sääntö

The basic bar

A private party may not sue a state, or an arm of the state, in federal court for damages or for an injunction, unless an exception applies. The bar applies whether the plaintiff is a citizen of another state or a citizen of the defendant state itself.

Sääntö

Local governments are not protected

Cities, counties, school districts and other local governments have no Eleventh Amendment immunity. The same is true of any body the state created as a legally separate corporation. They may be sued in federal court for damages or an injunction.

The exceptions

abrogation – Congress’s removal of a state’s immunity from suit by a clear statement, valid only under powers such as Section 5 of the Fourteenth Amendment.

Elementit

Four ways around the Eleventh Amendment

Any one of these lets an otherwise barred suit proceed in federal court:

  1. 1.Consent: The state waives its immunity by a clear statement or by its conduct in the case.
  2. 2.Abrogation: By abrogation, Congress removes the immunity by a clear statement under Section 5 of the Fourteenth Amendment.
  3. 3.*Ex parte Young*: The plaintiff sues a state official for an injunction against an ongoing violation of federal law.
  4. 4.Government plaintiff: The United States, or another state, is the plaintiff.

Mikä tahansa riittää.

Sääntö

Consent and waiver

A state may consent to suit by a clear statement in a statute or by its conduct in litigation. Removing a case from state court to federal court waives immunity for that case. Accepting federal funds waives immunity only when Congress clearly conditioned the funds on waiver.

Sääntö

Abrogation by Congress

Congress may remove state immunity only by a clear statement under a power that limits state sovereignty, chiefly Section 5 of the Fourteenth Amendment. Article I powers, such as commerce or copyright, do not allow abrogation. Exception: in the plan of the Convention, the states consented to suits under the bankruptcy, war and federal eminent-domain powers.

The Fourteenth Amendment came after the Eleventh and was written to limit the states. The Commerce Clause did not change state sovereignty. A Section 5 statute must also be congruent and proportional to actual constitutional violations by the states (City of Boerne v. Flores, 521 U.S. 507 (1997)).

prospective relief – An injunction or declaration that governs the defendant’s future conduct, as opposed to money for past harm.

Asia

Ex parte Young, 209 U.S. 123 (1908) (U.S. Supreme Court 1908)

Faktat

Railroad shareholders sued Minnesota’s attorney general, Edward Young, in federal court to stop him from enforcing allegedly unconstitutional rate laws.

Holding

A state official who enforces an unconstitutional law is stripped of the state’s authority. A suit to enjoin the official is therefore not a suit against the state, and the Eleventh Amendment does not bar it.

Miksi sillä on väliä

The main route to an injunction against a state policy: sue the official for prospective relief.

Sääntö

Limits on Ex parte Young

A Young suit must name the official, not the state, and must seek prospective relief: an injunction or a declaration against an ongoing violation of federal law. It may not seek retroactive money from the state treasury, and it may not be used to enforce state law against state officials.

An official sued in personal capacity pays damages from personal funds, so the Eleventh Amendment does not apply; qualified immunity may (Hafer v. Melo, 502 U.S. 21 (1991)). Under 42 U.S.C. § 1983, a state is not a “person”. A state official sued for an injunction is (Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989)).

Sääntö

Government plaintiffs and state courts

The United States may sue a state in federal court. One state may sue another only in the Supreme Court, which has original and exclusive jurisdiction. A state also keeps its immunity against private federal-law claims in its own courts, unless it consents or Congress validly abrogates.

Eleventh Amendment quick table
DefendantRelief soughtAllowed in federal court?
State or state agencyRelief soughtDamagesAllowed in federal court?No, unless the state consents, Congress validly abrogates under Section 5, or the claim falls under the bankruptcy or war powers
State or state agencyRelief soughtInjunctionAllowed in federal court?No. Sue the responsible official instead
State official, official capacityRelief soughtProspective injunction or declaration under federal lawAllowed in federal court?Yes (Ex parte Young)
State official, official capacityRelief soughtRetroactive money from the treasuryAllowed in federal court?No (Edelman)
State official, personal capacityRelief soughtDamages paid by the officialAllowed in federal court?Yes, subject to qualified immunity
City, county, school districtRelief soughtAny reliefAllowed in federal court?Yes. Local governments have no immunity
State sued by the United States or another stateRelief soughtAny reliefAllowed in federal court?Yes; a suit by another state goes only to the Supreme Court

Esimerkki

A fired professor

A state university dismisses a professor for statements she made at a public meeting. She sues the university and its president in federal court for back pay, reinstatement, and damages from the president personally.

Analyysi

The university is an arm of the state, so the claims against it are barred. Back pay is retroactive money from the treasury and is barred even against the president in his official capacity. Reinstatement is prospective relief against an official and is allowed under Ex parte Young. Personal-capacity damages are allowed, subject to qualified immunity.

Tulokset

The suit survives only as a Young claim for reinstatement and a personal-capacity damages claim against the president.

Tenttivinkki

State official plus injunction: allowed. State agency plus damages: barred. A Commerce Clause statute cannot abrogate immunity, so a damages claim against the state fails. Tested on 6 of the last 50 California exams.

Keskeiset huomautukset

  1. 1.Private parties may not sue a state or its agencies in federal court for damages or injunctions (Hans).
  2. 2.Local governments have no immunity.
  3. 3.Exceptions: consent, Section 5 abrogation by clear statement, Ex parte Young, and suits by governments.
  4. 4.Ex parte Young allows only prospective relief against an official; no retroactive money (Edelman).
  5. 5.Article I powers such as commerce do not allow abrogation (Seminole Tribe); bankruptcy, war powers and eminent domain rest on the states’ consent.

1.4 Standing

Standing is the most tested Constitutional Law issue on the California essay and a regular MBE topic. It asks one question: is this plaintiff the right person to bring this case? A plaintiff who merely objects to a policy, or sues for the public, has no standing.

standing – The requirement that the plaintiff have a personal stake in the case: an injury in fact, caused by the defendant, that the court can redress.

injury in fact – A concrete and particularized harm to the plaintiff that is actual or imminent, not conjectural or hypothetical.

Elementit

The three constitutional elements of standing

The plaintiff must show all three:

  1. 1.Injury in fact: A concrete and particularized injury that is actual or imminent.
  2. 2.Causation: The injury is fairly traceable to the defendant’s challenged conduct.
  3. 3.Redressability: A favorable decision is likely to remedy the injury.

Kaikki tarvittavat elementit.

Sääntö

The constitutional minimum

The plaintiff must show all three elements at every stage of the case, with the degree of proof that stage requires. Standing is examined claim by claim and for each form of relief. A court must decide standing before the merits.

Asia

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (U.S. Supreme Court 1992)

Faktat

An environmental group challenged a rule that limited an Endangered Species Act duty to projects inside the United States. Its members said they had visited habitats abroad and intended to return “some day.” The Act gave “any person” the right to sue.

Holding

No standing. A “some day” intention with no concrete plans is not an imminent injury. Congress cannot turn a general public interest in government compliance with the law into an individual injury by letting everyone sue.

Miksi sillä on väliä

Sets the three-element test and the “some day” rule.

Injury in fact in detail

Concrete means real, not abstract. The injury may be physical, financial, or intangible, such as a loss of privacy or free speech. A bare statutory violation with no traditionally recognized harm is not concrete (Spokeo, Inc. v. Robins, 578 U.S. 330 (2016)). Particularized means the injury affects the plaintiff personally, not the public in general.

Actual or imminent means the harm has happened or is certainly impending. A substantial risk that the harm will occur is also enough (Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)). A speculative chain of future events is not.

generalized grievance – A complaint shared equally by all citizens, such as an interest in the government obeying the law. It is not an injury in fact.

Sääntö

Generalized grievances and ideological injury

A plaintiff whose only injury is a generalized grievance, such as an interest in the government obeying the law, lacks standing. Deep concern is not an injury. Exception: an injury shared by many still counts if each person suffers it concretely.

Sääntö

Causation and redressability

The injury must be fairly traceable to the defendant’s conduct, not to a third party’s independent choice. Exception: a third party’s predictable reaction to the government action counts. A favorable decision must be likely to remedy the injury. An injunction requires a real threat of future injury; past injury supports only damages.

Special standing rules

Sääntö

Third-party standing

A plaintiff generally may assert only their own rights. Exception: a plaintiff with their own injury may raise a third party’s rights if the two have a close relationship and the third party cannot easily sue. A seller may raise the rights of its customers.

Sääntö

Organizational standing

An association may sue for its members when three things are true. An identified member would have standing. The interests are germane to its purpose. Neither the claim nor the relief needs members to take part. An organization may also sue for its own injury, but spending money to oppose a policy is not one.

Sääntö

Taxpayer standing

A federal taxpayer has no standing to challenge how the government spends money; the interest is too small and shared with everyone. Exception: a taxpayer may challenge a congressional spending statute under the Establishment Clause. The exception does not reach executive discretionary spending, tax credits, or transfers of property.

Other special plaintiffs
PlaintiffRule
LegislatorOnly for a concrete personal injury, such as a nullified vote; loss of political power is not enough
StateFor injury to its own territory, treasury or sovereign interests; not merely to protect its citizens against federal law
CitizenNo standing to insist that the government obey the Constitution in general
Statutory plaintiffCongress may create rights whose violation is an injury, but the harm must still be concrete (Spokeo; TransUnion)

Hypoteettinen

The conservation group and the dam

A federal agency issues a permit for a private company to build a dam on a river in Oregon. The Riverkeepers Alliance, a nonprofit with 5,000 members whose stated purpose is protecting river habitats, sues the agency in federal court. It seeks an injunction setting aside the permit. The Alliance files declarations from 3 named members. Each member states that she hikes and watches birds at the site every month and will lose that use once the reservoir floods it. The agency moves to dismiss for lack of standing. It argues that the Alliance owns no land near the river and that the members’ interest is merely aesthetic.

Does the Riverkeepers Alliance have standing to seek the injunction?

Analyysi

The issue is whether the Alliance may sue on behalf of its members. Under Hunt, an association has standing when an identified member would have standing, the interests are germane to its purpose, and individual participation is not required. A member needs injury in fact, causation and redressability (Lujan). Here, the 3 named members use the site every month and will lose that use when the reservoir floods it. Unlike the “some day” plans in Lujan, this use is concrete and personal. The permit has issued, so the injury is imminent. It is traceable to the permit, and an injunction would redress it. Protecting river habitats is the Alliance’s purpose, and an injunction needs no individual proof. The agency will argue that the injury is only aesthetic. However, aesthetic injury counts when the plaintiff personally uses the affected area. Therefore, the Alliance has standing.

Muistomerkki

I-C-R

  • I– Injury in fact: concrete, particularized, actual or imminent
  • C– Causation: fairly traceable to the defendant
  • R– Redressability: a favorable decision is likely to fix it

Tenttivinkki

The wrong MBE answer says “no standing because the injury is only economic” or “because many people are injured.” Economic injury is the easiest injury to prove. A shared injury counts if it is concrete for each plaintiff.

Keskeinen kohta

Standing is about the plaintiff, not the merits. A weak legal claim can have standing; a strong claim about someone else’s injury does not.

Keskeiset huomautukset

  1. 1.Standing needs injury in fact, causation and redressability, shown by the plaintiff at every stage (Lujan).
  2. 2.Injury must be concrete, particularized, and actual or imminent; “some day” plans and generalized grievances fail.
  3. 3.Past injury supports damages; an injunction needs a real threat of future injury (Lyons).
  4. 4.Associations sue for members under Hunt: member standing, germane purpose, no individual participation needed.
  5. 5.Taxpayers lack standing except Establishment Clause challenges to congressional spending (Flast), not executive spending (Hein).

1.5 Ripeness, mootness, advisory opinions and political questions

The four doctrines in this section ask four questions. Is it too early (ripeness)? Is it too late (mootness)? Is there any real dispute (advisory opinions)? Does the issue belong to another branch (political question)? Ripeness and mootness were tested on 5 of the last 50 California essays.

Advisory opinions

advisory opinion – A court’s statement of what the law is, given outside a real dispute between adverse parties.

declaratory judgment – A binding court ruling that states the parties’ legal rights without ordering any action or awarding damages.

Sääntö

No advisory opinions

Federal courts may not answer legal questions posed by the other branches, decide collusive or friendly suits, or give judgments that another branch may revise. Exception: a declaratory judgment is allowed when an actual controversy exists, because the judgment binds the parties.

Ripeness

ripeness – The requirement that a dispute has developed enough for a court to decide it. A claim about a future or hypothetical harm is not ripe.

Sääntö

The ripeness test

Two questions decide ripeness. Are the issues fit for decision, needing no further facts? Would waiting cause the parties hardship? A challenge before enforcement is ripe when there is a credible threat of enforcement. A land-use claim must usually wait for a final decision on a permit or variance. A facial challenge to a standardless licensing law need not wait.

Esimerkki

Two challenges to unenforced laws

First case: a state has not enforced its ban on contraceptives for decades, and a married couple sues to have it declared invalid. Second case: a new federal rule requires drug makers to change every label at once, with penalties for noncompliance. The makers sue at once.

Analyysi

The first case is not ripe: with no credible threat of prosecution, waiting causes no hardship (Poe v. Ullman). The second is ripe: the issue is purely legal, and the makers must spend money now or risk penalties (Abbott Laboratories).

Tulokset

No threat: dismiss. Immediate compliance costs: decide.

Mootness

mootness – The rule that a live controversy must exist at every stage of the case. If events end the dispute after filing, the case is dismissed as moot.

Sääntö

When a case is moot

A case is moot when the plaintiff no longer has a personal stake because the injury has ended and no effective relief is possible. A claim for damages, even nominal damages, keeps the case alive. An unaccepted offer to settle does not make a claim moot.

DeFunis is the classic example. A law student denied admission sued and was admitted under a court order. By the time the Supreme Court heard the case, he was in his final term and would graduate whatever the result. The case was moot.

voluntary cessation – A defendant’s stopping the challenged conduct after suit is filed. It does not moot the case unless the conduct clearly cannot recur.

Elementit

Exceptions to mootness

A case that looks moot survives if any one applies:

  1. 1.Capable of repetition, yet evading review: The injury is too short to litigate fully, and the same plaintiff may face it again (pregnancy, elections).
  2. 2.Voluntary cessation: The defendant’s voluntary cessation does not moot the case if it is free to resume the conduct.
  3. 3.Class actions: The named plaintiff’s claim ends, but the certified class still has a live claim.
  4. 4.Collateral consequences: The sentence is over, but the conviction still carries legal consequences.

Mikä tahansa riittää.

Sääntö

The two most tested exceptions

Voluntary cessation moots a case only if the defendant shows it is absolutely clear that the conduct cannot reasonably be expected to recur. The repetition exception requires both a short-lived injury and a reasonable expectation that the same complaining party will face it again.

The pregnancy example comes from Roe v. Wade. Roe’s abortion holding was overruled in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022); its mootness holding still stands.

Sääntö

Class actions and collateral consequences

A certified class keeps the case alive after the named plaintiff’s own claim ends. A finished sentence does not moot a challenge to a conviction that still carries legal consequences.

Ripeness and mootness compared
QuestionRipenessMootness
Timing problemRipenessToo earlyMootnessToo late
TestRipenessFitness for decision plus hardship from delayMootnessNo live controversy; no effective relief possible
Typical factRipenessNo credible threat of enforcement; no request yet for a discretionary permit or varianceMootnessPlaintiff graduated, moved or was paid; law repealed
CureRipenessWait for a credible threat of enforcement or a final decision on the permitMootnessExceptions: repetition, voluntary cessation, class action, collateral consequences

Political questions

political question – An issue the Constitution commits to another branch, or one that a court has no manageable standards to decide.

Asia

Baker v. Carr, 369 U.S. 186 (1962) (U.S. Supreme Court 1962)

Faktat

Tennessee voters claimed that the state’s outdated legislative districts violated equal protection. The federal district court dismissed the complaint.

Holding

An equal protection challenge to legislative apportionment is justiciable. The Court listed six features of a political question and found none present.

Miksi sillä on väliä

The six Baker factors are the test for a political question.

Elementit

The Baker v. Carr factors

Any one of these can make an issue a political question. The first two matter most:

  1. 1.Textual commitment: The Constitution clearly gives the issue to another branch.
  2. 2.No manageable standards: There is no judicial standard to decide it.
  3. 3.Policy determination: Deciding requires an initial policy choice unsuited to judges.
  4. 4.Disrespect: A decision would show lack of respect for a coordinate branch.
  5. 5.Adherence: There is an unusual need to stick to a political decision already made.
  6. 6.Embarrassment: Multiple branches speaking on one question would cause embarrassment.

Mikä tahansa riittää.

Sääntö

Applying the doctrine

A court dismisses a political question in two main situations: the Constitution commits the issue to Congress or the President, or no judicially manageable standards exist. Political sensitivity alone is not enough. Individual rights claims are usually justiciable.

Political question or not?
Political question (court will not decide)Justiciable (court will decide)
Guarantee Clause claims that a state government is not “republican” (Luther v. Borden)Equal protection challenges to malapportionment (Baker v. Carr); one person, one vote (Reynolds v. Sims, 377 U.S. 533 (1964))
How the Senate conducts an impeachment trial (Nixon v. United States)Congress excluding an elected member for reasons outside the listed qualifications (Powell v. McCormack)
Partisan gerrymandering (Rucho v. Common Cause)Racial gerrymandering under equal protection (Shaw v. Reno, 509 U.S. 630 (1993))
The President’s termination of a treaty, per a plurality (Goldwater v. Carter)Whether a passport statute intrudes on the President’s recognition power (Zivotofsky v. Clinton)

Tenttivinkki

Read for the timeline. A plaintiff who has not sought a discretionary permit or variance is usually unripe. Exception: a flat ban, or a facial challenge to a standardless licensing law, needs no application. An injury that ended before judgment is moot unless an exception fits.

Keskeiset huomautukset

  1. 1.No advisory opinions; declaratory judgments are allowed when a real controversy exists.
  2. 2.Ripeness: fitness for decision plus hardship from delay; a credible threat of enforcement makes a challenge ripe.
  3. 3.Mootness: a live controversy is needed at every stage; even a nominal-damages claim keeps a case alive.
  4. 4.Mootness exceptions: capable of repetition yet evading review, voluntary cessation, class actions, collateral consequences.
  5. 5.Political question: textual commitment to another branch or no manageable standards (Baker); partisan gerrymandering is one (Rucho).

1.6 Adequate and independent state grounds; abstention

The last two doctrines in this chapter protect the role of state courts. The first limits what the Supreme Court will review when a state court has already decided a case. The second tells a federal trial court when to decline to act even though it has jurisdiction. Both appear on the MBE, usually as one answer choice among four, so you need to know exactly when each applies.

adequate and independent state ground – A state-law basis for a state court’s judgment that fully supports the result on its own, without depending on federal law.

Sääntö

The rule

The Supreme Court will not review a state court judgment that rests on an adequate and independent state ground. This is true even if the state court also decided a federal question. Reversing the federal ruling would not change the outcome, so the Court’s opinion would be advisory.

Adequate means the state ground fully supports the judgment by itself. A state constitutional provision that gives broader rights than the federal Constitution is adequate. A state procedural rule, such as a missed filing deadline, is adequate if the state applies it regularly and not just to block federal claims. Independent means the state ground does not depend on federal law. If the state court read its own constitution by simply copying federal doctrine, the ground may not be independent.

plain statement rule – A state court avoids Supreme Court review by stating clearly that its decision rests on adequate and independent state grounds.

Asia

Michigan v. Long, 463 U.S. 1032 (1983) (U.S. Supreme Court 1983)

Faktat

The Michigan Supreme Court suppressed marijuana found during a search of a car, citing the Fourth Amendment and, in passing, the Michigan Constitution. Michigan sought Supreme Court review; Long argued the judgment rested on state law.

Holding

When a state decision appears to rest primarily on federal law, or is interwoven with it, the Supreme Court presumes it may review. The presumption applies only if the opinion does not make clear, on its face, that the state ground is adequate and independent. A state court avoids review by a plain statement that its decision rests on independent state grounds.

Miksi sillä on väliä

The plain statement rule. A state court that wants its state-law ruling to be final must say so clearly.

Esimerkki

The same ruling, two ways

A state supreme court holds that a warrantless search of a cell phone violated both the Fourth Amendment and the state constitution. Version one: the opinion adds a sentence. “Our state constitution independently requires this result regardless of federal law.” Version two: the opinion discusses federal cases at length and mentions the state constitution in one sentence.

Analyysi

Version one has an adequate and independent state ground stated plainly, so the Supreme Court will not review. Version two is interwoven with federal law and has no plain statement. Under Michigan v. Long the Court presumes the decision rests on federal law and may review it.

Tulokset

Version one: no review. Version two: review of the Fourth Amendment question.

Keskeinen kohta

State courts may give more rights under state constitutions than the federal floor. When they say so plainly, the Supreme Court will not review.

Huom

Standing in state courts

Article III limits only federal courts. State courts, including California courts, set their own standing rules. A Constitutional Law essay about a federal lawsuit tests Article III standing, so do not use California standing rules.

Abstention

abstention – A federal court’s decision to decline or delay exercising jurisdiction it has, out of respect for state courts or state processes.

Sääntö

Pullman abstention

A federal court may postpone deciding a federal constitutional claim in one situation. The case turns on an unsettled question of state law, and a state court’s answer might avoid the constitutional issue. The federal court keeps the case and waits for the state ruling.

Sääntö

Younger abstention

A federal court will not enjoin a pending state criminal prosecution when the state court can hear the federal defense. The same is true of a civil enforcement proceeding like a prosecution, and of a proceeding that enforces a state court’s own orders. Exception: bad faith or harassment, or a flagrantly unconstitutional statute.

Younger rests on equity and comity. A criminal defendant has an adequate remedy: raise the constitutional defense in the state trial and on appeal. So the order of the two cases matters, as the next rule shows.

Sääntö

Timing under Younger

While a state prosecution is pending, a federal court also may not issue a declaratory judgment. A person who is threatened with prosecution, but not yet charged, may seek declaratory relief. Exception: if the state charges the plaintiff after the federal suit is filed but before the federal court acts on the merits, Younger still applies.

The abstention doctrines
DoctrineWhen it appliesEffect
PullmanWhen it appliesUnsettled state law could avoid the federal constitutional questionEffectFederal court waits for a state ruling on the state issue
YoungerWhen it appliesA state criminal prosecution, a civil enforcement proceeding like one, or a proceeding enforcing a state court’s orders is pendingEffectFederal court dismisses the request for an injunction or declaration
BurfordWhen it appliesA complex state regulatory scheme with its own specialized review processEffectFederal court dismisses or stays in favor of the state process (stay only in damages actions)
Colorado RiverWhen it appliesParallel litigation in state court, in exceptional circumstancesEffectFederal court stays or dismisses to avoid duplicate litigation

Sääntö

Burford and Colorado River (rarely tested)

Burford abstention lets a federal court defer to a state’s unified review system in a complex regulated field, such as oil and gas. In a damages action, the court may only stay the case. Colorado River allows a stay or dismissal in favor of parallel state litigation only in exceptional circumstances, because federal courts must normally use their jurisdiction.

Tenttivinkki

On the MBE, abstention appears as a wrong answer more often than a right one. Pick it only when a state prosecution is already pending (Younger) or an unclear state statute could avoid the federal question (Pullman).

Keskeiset huomautukset

  1. 1.The Supreme Court will not review a state judgment that rests on an adequate and independent state ground.
  2. 2.Michigan v. Long: without a plain statement, an interwoven decision is presumed to rest on federal law.
  3. 3.Pullman: wait for a state court to settle unclear state law that might avoid the constitutional issue.
  4. 4.Younger: do not enjoin a pending state prosecution, absent bad faith or harassment.

1.7 Review

This section pulls the chapter together. First, a checklist you can run in 30 seconds on any fact pattern. Then three more glossary terms, a one-paragraph rule for essays, an IRAC template for standing, and a 15-minute essay drill with a model answer. Finally, 5 practice questions in MBE form; the real exam gives you 1.8 minutes for each. Answer each question before you open the answer.

Elementit

The justiciability checklist

Run these questions in order whenever a case is in federal court:

  1. 1.Defendant: Is the defendant a state or state agency? If so, apply the Eleventh Amendment and its exceptions.
  2. 2.Plaintiff: Does the plaintiff have injury in fact, causation and redressability? Is a special rule involved?
  3. 3.Too early: Is the claim ripe: fit for decision, with hardship if the court waits?
  4. 4.Too late: Is the claim moot? If so, does one of the four exceptions apply?
  5. 5.Wrong branch: Is the issue a political question under the Baker factors?
  6. 6.Real dispute: Is the court being asked for an advisory opinion?
  7. 7.State court: If the case comes from a state court, is there an adequate and independent state ground?

Mikä tahansa riittää.

– Court-made limits on standing beyond the Article III minimum, chiefly the general bar on raising the rights of third parties.

– Latin for “parent of the country”: a state suing to protect its citizens’ welfare. A state may not sue the federal government in this role.

– Legal disadvantages that continue after a sentence ends, such as loss of voting rights. They keep a challenge to a conviction alive.

Sääntö

The one-paragraph justiciability rule for essays

A federal court may decide a case only if four things are true. The plaintiff has standing (injury, causation, redressability). The dispute is ripe and not moot. The issue is not a political question. The Eleventh Amendment does not bar the suit. Analyze each doctrine the facts raise, then move to the merits.

IRAC

Antaa
The issue is whether [plaintiff] has standing to challenge [the government action] in federal court.
Sääntö
Under Article III, a plaintiff must show (1) an injury in fact that is concrete, particularized, and actual or imminent; (2) causation, meaning the injury is fairly traceable to the defendant’s conduct; and (3) redressability, meaning a favorable decision is likely to remedy the injury (Lujan v. Defenders of Wildlife). If the plaintiff is an association, it may sue for its members when a member would have standing, the interests are germane to its purpose, and individual participation is not required (Hunt). A taxpayer has standing only to bring an Establishment Clause challenge to a congressional spending statute (Flast).
Sovellus
Here, [plaintiff] suffered [describe the injury] when [defendant] [describe the act]. The injury is concrete because [it is financial, physical, or a recognized intangible harm]. It is particularized because it affects [plaintiff] personally, not the public in general. It is actual or imminent because [it has happened or is certainly impending]. The injury is traceable to [defendant] because [link the act to the harm], not to the independent choice of a third party. A court order [setting aside the act] would redress the injury because [explain]. [Defendant] will argue that [the injury is speculative or shared by everyone]. However, [respond with the facts].
Johtopäätös
Therefore, [plaintiff] [has / does not have] standing, and the court [may / may not] reach the merits.

Hypoteettinen

Essay drill (15 minutes): the billboard ordinance

A city council adopted an ordinance that bans new billboards within city limits. A city design board may grant a variance for a billboard that meets stated design standards on size, lighting and distance from homes. The board decides each request after a public hearing. A billboard company owns 8 billboards in the city and earns most of its revenue from them. It has said publicly that it wants to build 3 new billboards next year. It has not chosen sites, bought land or signed any lease, and it has never asked the board for a variance. The company sued the city in federal district court. It asked for a declaration that the ordinance, as applied to its planned billboards, violates the First Amendment, and for an injunction against its enforcement. The city moved to dismiss, arguing that the company lacks standing, that the claim is not ripe, and that the city is immune from suit.

Should the court dismiss? Discuss standing, ripeness and immunity. Write for 15 minutes, then compare your answer with the model.

Analyysi

Standing. The issue is whether the company has standing. Under Article III, a plaintiff must show an injury in fact that is concrete, particularized, and actual or imminent; causation; and redressability (Lujan v. Defenders of Wildlife). Here, the ordinance regulates the company’s own business. The company earns most of its revenue from billboards and wants to build 3 more, so the ban affects it personally. The ban causes that harm, and an order against the ban would remove it. The city will argue that the company has no sites and no project, like the “some day” plans in Lujan. However, Lujan also says that a plaintiff who is itself the object of a law ordinarily has standing to challenge it. Therefore, the company likely has standing. The timing problem is a question of ripeness. Ripeness. The issue is whether the claim is ripe. A claim is ripe when the issues are fit for judicial decision and the parties would suffer hardship from delay (Abbott Laboratories v. Gardner). A challenge before enforcement is ripe when the plaintiff plans conduct that the law arguably forbids and faces a credible threat of enforcement (Susan B. Anthony List). However, when a law lets officials grant a discretionary variance, a court usually waits for a final decision on how the law applies to the plaintiff (Pakdel). Here, the claim is as-applied: it attacks how the ordinance applies to the company’s own planned billboards. The company has not chosen sites or asked for a variance. The board may grant a variance under its design standards, which would end the dispute without a constitutional ruling. Because the board applies stated standards, this is not a standardless licensing law that may be challenged without applying (City of Lakewood). The company will argue that the ban is certain and that waiting forces it to plan its business around the ban. However, the ban is not certain as applied to the company, because a variance is available, and the company faces no penalty or compliance cost now. Therefore, the claim is not ripe, and the court should dismiss without prejudice until the company seeks a variance and the board denies it. Immunity. The issue is whether the city is immune. The Eleventh Amendment protects states and arms of the state, not cities, counties or school districts (Mt. Healthy v. Doyle). Here, the defendant is a city. Therefore, the immunity argument fails. Conclusion. Therefore, the court should dismiss the action as unripe. The immunity argument fails, and the merits are not reached.

Harjoittelu · MBE

A federal agency adopted a rule that reduced the annual catch limits for commercial fishing in the Pacific Northwest. A trade association of 200 fishing businesses sued the agency in federal district court. It sought to set the rule aside as arbitrary under a federal statute. The complaint alleged that each member business would lose income under the new limits and identified 12 members by name. The association’s charter states that its purpose is to promote the economic interests of commercial fishing businesses in the region. The association itself owns no boats and catches no fish. The relief sought is an injunction that would apply equally to all members. The agency moved to dismiss for lack of standing. Does the association have standing?
Valitse vastaus

Vaihto + kirjain iskee vaihtoehdon

Vastaus: A

The association has standing. Under Hunt v. Washington State Apple Advertising Commission, an association may sue on behalf of its members when (1) at least one identified member would have standing, (2) the interests at stake are germane to the organization’s purpose, and (3) neither the claim nor the relief requires individual members to participate. Here, named members face a concrete financial injury that is traceable to the rule and redressable by an injunction; economic protection is the association’s stated purpose; and an injunction applies to everyone without individual proof. Option B states the rule too broadly. Option C ignores associational standing. Option D reverses the rule: economic injury is the clearest injury in fact.
A is correct. Notice the trap in option C: an organization does not need its own injury when it sues for its members. Notice the trap in option D: economic loss is the easiest injury to prove, not the hardest.

Harjoittelu · MBE

Congress made a general appropriation to the Department of Health and Human Services for its day-to-day operations. No statute authorized grants to outside groups or mentioned faith-based programs. On her own initiative, the Secretary used part of the operating funds to pay a faith-based organization. The organization runs addiction-recovery meetings that include prayer. A federal taxpayer who objects to government funding of religious activity sued the Secretary in federal district court. The taxpayer claimed that the payment violated the Establishment Clause. The taxpayer alleged no injury other than the payment of federal taxes. The Secretary moved to dismiss for lack of standing. Should the court grant the motion?
Valitse vastaus

Vaihto + kirjain iskee vaihtoehdon

Vastaus: C

The court should dismiss. Federal taxpayers generally lack standing because their interest in the treasury is minute and shared with everyone (Frothingham). Flast v. Cohen created a narrow exception for Establishment Clause challenges to exercises of Congress’s taxing and spending power. In Hein v. Freedom From Religion Foundation, the Court refused to extend Flast to discretionary executive spending from general appropriations. Here, no statute authorized or directed the payment; the Secretary chose it. A statutory grant program would differ (Bowen v. Kendrick). Option A ignores Hein. Option B describes a generalized grievance. Option D is too absolute because Flast still exists.
C is correct. The key fact is who chose to spend the money on religion. Congress by statute: Flast applies. The executive at its discretion: Hein, no standing.

Harjoittelu · MBE

A state statute required every pregnant public school teacher to begin unpaid leave 5 months before the expected birth. It also barred her from returning until the next school term. A pregnant teacher sued the members of the state board of education in federal district court. She sought a declaration that the statute violated the Fourteenth Amendment and an injunction against its enforcement. She sought no damages and did not ask the court to certify a class. The district court upheld the statute. By the time the court of appeals heard her appeal, the teacher had given birth and had returned to work. The state moved to dismiss the appeal as moot. How should the court of appeals rule on the motion?
Valitse vastaus

Vaihto + kirjain iskee vaihtoehdon

Vastaus: B

The appeal is not moot. A case is moot when no live controversy remains. Exception: the challenged action is too short to be fully litigated before it ends, and the same party can reasonably expect to face it again (Roe v. Wade; Southern Pacific Terminal Co. v. ICC). Here, a pregnancy lasts about 9 months, far less than an appeal takes, and the teacher may become pregnant again and face the same leave rule. Option A states the general rule but ignores the exception. Option C is wrong because injunctive claims survive under the exception. Option D fails because no class was certified, so the class-action exception is unavailable.
B is correct. Rule: the exception for injuries capable of repetition, yet evading review, needs both a short-lived injury and a reasonable expectation that the same plaintiff will face it again. Facts: a pregnancy is shorter than appellate litigation, and the teacher may be pregnant again while still employed. Therefore the controversy is live. The distractor in D is a common one: the class-action exception needs a certified class, and a plaintiff who merely says she represents others has not created one.

Harjoittelu · MBE

Congress passed a statute under its Commerce Clause power. It prohibits employers, including state governments, from discriminating against employees for their off-duty use of lawful products. The statute states that it abrogates state sovereign immunity and authorizes damages suits against states in federal court. The statute also authorizes suits for injunctions against state officials who enforce policies it forbids. A state department of transportation dismissed an employee for using a lawful product outside working hours. The employee sued in federal district court. In one claim she sought $1 million in damages from the department under the statute. In a separate claim she sued the department’s director in his official capacity. She sought an injunction ordering him to reinstate her and to stop enforcing the department’s policy. The state moved to dismiss both claims under the Eleventh Amendment. How should the court rule?
Valitse vastaus

Vaihto + kirjain iskee vaihtoehdon

Vastaus: D

The damages claim is barred and the injunction claim survives. A state agency is an arm of the state and shares its immunity. Congress may abrogate that immunity only by a clear statement under a power that limits state sovereignty, such as Section 5 of the Fourteenth Amendment; the Commerce Clause does not qualify (Seminole Tribe v. Florida). A suit against a state official in his official capacity for prospective relief against an ongoing violation of federal law is not a suit against the state (Ex parte Young). Reinstatement and an order to stop enforcing the policy are prospective. Option A ignores Seminole Tribe. Option B ignores Young. Option C reverses the analysis.
D is correct. This is the classic pairing: agency plus damages under an Article I statute is barred; official plus prospective injunction is allowed. Note that back pay would be different: it is retroactive money from the treasury and is barred under Edelman v. Jordan.

Harjoittelu · MBE

A state’s highest court reversed a criminal conviction, holding that a warrantless search of the defendant’s backpack was unlawful. The opinion analyzed the search under the Fourth Amendment and cited only decisions of the United States Supreme Court. It then added one sentence. The search also violated the state constitution’s search-and-seizure clause, which the court “has always interpreted in harmony with the Fourth Amendment”. The opinion contained no statement that the state ground was independent of federal law. The state petitioned the United States Supreme Court for a writ of certiorari. It argued that the state court had misread the Fourth Amendment. The defendant argued that the judgment rests on an adequate and independent state ground. May the Supreme Court review the judgment?
Valitse vastaus

Vaihto + kirjain iskee vaihtoehdon

Vastaus: A

The Court may review. The Supreme Court will not review a state judgment that rests on an adequate and independent state ground. Under Michigan v. Long, however, the Court presumes that a decision rests on federal law in one situation. The decision appears to rest primarily on federal law, or is interwoven with it, and the opinion does not make the state ground’s independence clear. Here, the state court cited only federal cases, read the state clause “in harmony with” the Fourth Amendment, and made no plain statement. Option B assumes an independence that the opinion does not show. Option C states a true rule that does not apply. Option D is too broad.
A is correct. Rule: the Supreme Court presumes it may review a state judgment that is interwoven with federal law unless the state court plainly states that its decision rests on independent state grounds (Michigan v. Long). Facts: only federal cases were cited, and the state clause was read “in harmony with” the Fourth Amendment. Therefore the state ground is not independent, and review is available. Notice the trap in B: mentioning the state constitution is not enough; the opinion must say that the state ground stands on its own.

Keskeiset huomautukset

Chapter summary

  1. 1.Federal courts decide only cases and controversies within Article III; Congress creates the lower courts and may limit appellate jurisdiction.
  2. 2.A state is immune in federal court unless it consented, Congress validly abrogated, or an official is sued for prospective relief.
  3. 3.Standing needs injury in fact, causation and redressability; organizations, taxpayers and third parties follow special rules.
  4. 4.Ripeness is too early; mootness is too late, with four exceptions; political questions belong to another branch.
  5. 5.The Supreme Court will not review a state judgment resting on an adequate and independent state ground stated plainly.
  6. 6.Pullman and Younger abstention tell a federal court when to decline to act even though it has jurisdiction.

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